Class Actions and Typicality: Consumer Fraud

Plaintiffs’ Claims Are Typical of the Class
The New Jersey Supreme Court has stated that the typicality requirement is sometimes equated with the fourth requirement of adequacy of representation. Delgozzo, supra, 266 NJ Super. at 186. Typicality ensures that the representative plaintiffs’ interests are similar enough to the absent members so that the absent members will be adequately and fairly represented. Claims are typical if they “have the essential characteristics common to the claims of the class.” In re Cadillac, supra, 93 N.J. at 425. It does not mean, however, that they must be “identical.” Delgozzo, supra, 266 Super. at 187; see also Eisenberg, supra, 766 F. 2d at 786 (explaining that typicality is present where the factual circumstances of the class representatives are not “markedly different” from other members of the class); Weiss v. York Hospital, 745 F. 2d 786, 810 (3′ Cir. 1984); cert. denied, 470 U.S. 1060 (1985) (observing that plaintiff’s claims are typical if they arise from same events or practices or courses of conduct that give rise to the claims of other class members); De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7′ Cir. 1983) (explaining that claims are typical if they arise from same event or practice or course of conduct that give rise to other class members and are based on same legal theories); 3 H Newberg, Newberg on Class Actions §3.13 (3d ed.1992).
As explained by the Third Circuit in Baby Neal, supra,”‘ factual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory.'” 43 F. 3d at 58 (citation omitted); see also Eisenberg, 766 F 2d at 786 (holding that plaintiffs were typical because their “case was that these were identical investments, prepared by the same defendants, and containing the same alleged omissions and misrepresentations”). While the focus is on the relatedness of the plaintiffs’ claims and those of the class members, the harm suffered by the named plaintiffs may differ in degree from that suffered by other members of the class so long as the harm suffered is of the same type. See Delgozzo, supra, 266 NJ Super. at 187.